Executive Powers and Presidential Power

The unitary executive theory
The original executive branch
The meaning of "executive" power
Law and the President


The unitary executive theory

Constitutional clauses bearing on executive power

  • The Executive Vesting Clause (Article II Section 1): "The executive Power shall be vested in a President"
    • compare the Legislative Vesting Clause (Art. I Sec. 1): "All legislative Powers herein granted shall be vested in a Congress..."

  • The Opinions Clause (Article II Section 2): "he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices..."

  • The Inferior Officers Appointments Clause (Article II Section 2): "Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments"

  • The Take Care Clause (Article II Section 3): "he shall take Care that the Laws be faithfully executed..."
    • compare the Necessary and Proper Clause (Article I Section 8): The Congress shall have Power...To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Basic wisdom, circa 1970s

  • Myers v. U.S. (1926): presumptively, the president has supervisory and removal power over executive branch officers. But...
  • Humphrey's Executor v. U.S. (1935): Congress can limit this authority over officers having "quasi-leglislative" or "quasi-judicial" responsibilities.

The unitary executive theory: Vesting Clause + Take Care Clause => President has complete power of supervision and removal over all executive officials.

  • strong version: full presidential supervisory and removal power; no "independent agencies"
  • weak version: Unitary presidential control is a constitutional value; but Congress can decide when other values override it, and limit or constrain presidential supervisory powers.


The original executive branch

Prosecution as a "quintessentially executive power"?

The Independent Counsel (1978-1999)

  • Upon the Attorney General's finding that he/she finds "no reasonable grounds" to reject charges, a Special Division of the U.S. Court of Appeals appoints an Independent Counsel.
  • removable only through impeachment, or by AG due to "substantial improprieties" or disability
  • may prosecute; may report to Congress as he/she deems relevant

Brief history of Independent Counsel

  • from Ethics in Government Act (1978); until 1987, "Special Prosecutor"
  • 15 separate special prosecutor/indep counsel offices -- most famously
    • Lawrence Walsh on Iran-Contra affair (1986-93)
    • Kenneth Starr on Whitewater affair (also the Vincent Foster suicide case, Travelgate, Filegate, and the Lewinsky scandal, 1994-2001)
  • challenged and upheld in Morrison v. Olson (1988)
  • allowed to expire 1999

Morrison v. Olson (1988) -- The solo dissent of Scalia: a touchstone of the originalist unitary presidency theory

  • prosecution is the "quintessentially" executive function
  • Expansive interpretation of the Vesting Clause: "the executive power...does not mean some of the executive power, but all of the executive power"; hence must be supervised (and removable) by the president
  • IC does not qualify as a "subordinate officer" because not subject to supervision or removal by anyone subordinate to the president; hence must be nominated by the president
  • Does not even qualify for statutory protection from removal under Humphrey's Executor

Contrary to this: approach of the early Congresses to federal prosecution

  • U.S. District Attorneys reported to no one.
  • gave some prosecutorial powers to the Comptroller of the Treasury, and considered regulating his term independently of president's control
  • In several circumstances, prosecution of federal crimes was given to state prosecutors or left to citizen-initiated lawsuits.
The unitary executive theory
The original executive branch
The meaning of "executive" power
Law and the President



Actual language of the bills creating the first Departments:   Foreign Affairs,   War,   Treasury

Note this language from Sec. 4 of the bill creating the Treasury Department:

it shall be the duty of the Secretary of the Treasury... to make report, and give information to either branch of the legislature, in person or in writing (as he may be required), respecting all matters referred to him by the Senate or House of Representatives, or which shall appertain to his office... (Sec. 2)

the... Treasurer shall..., on the third day of every session of Congress, lay before the Senate and House of Representatives, fair and accurate copies of all accounts by him from time to time rendered to, and settled with the Comptroller as aforesaid, as also, a true and perfect account of the state of the Treasury. (Sec. 4)

Lower-ranking officials specified for the Treasury Department:

  • Treasurer
  • Comptroller (explicitly shielded from presidential direction)
  • Auditor
  • Register

Specified certain duties and procedures in detail. Example:

  • "it shall be the duty of the Comptroller to superintend the adjustment and preservation of the public accounts; to examine all accounts settled by the Auditor, and certify the balances arising thereon to the Register; to countersign all war- rants drawn by the Secretary of the Treasury, which shall be warranted by law..." (Sec. 3)
  • "it shall be the duty of the Treasurer to receive and keep the monies of the United States, and to disburse the same upon warrants drawn by the Secretary of the Treasury, countersigned by the Comptroller, recorded by the Register, and not otherwise" (Sec. 4).

"Departments" vs. "Executive Departments" (language in Article II Sec. 2) as applied by the First Congress

  • Department
    • "heads of departments"
    • Department of the Treasury
    • Inferior Officers Appointments Clause
  • Executive department
    • "principal officers of executive departments"
    • Departments of Foreign Affairs, War
    • Opinions Clause


The mysterious Opinions Clause

Framers contemplated departments that might be heavily regulated by Congress?


The meaning of "executive" power

The "Bank War"

  • 1816 first Bank of the United States having been allowed to expire in 1811, a second was chartered under former Bank opponent Pres. Madison; charter for 20 years.
  • 1832 Jackson vetoed re-chartering (although charter would not expire until 1836).
  • 1832 Jackson re-elected, with a platform that included suppressing the Bank's power
  • 1833 the removal of deposits:
    • Treasury Sec. McLean expressed opposition in advance;
    • McLean elevated to Sec. of State; replaced by William Duane, who unexpectedly refused to comply, and was fired;
    • replaced by Atty. Gen. Taney (who had from the beginning expressed strong support for the removal of deposits).
  • 1833 Bank pres. Nicholas Biddle contracted credit to create political pressure for reconsideration of rechartering; ended up strengthening support for Jackson.
  • 1834 Whig-controlled Senate passed censure resolution against Jackson.
  • 1837 censure "expunged" shortly before Jackson left office.

Important: excerpts from Clay's speech in the Expunging Debate, pp. 82-83. "Clay could still point backward to a shared understaning of the nature of the original presidency, one perhaps eclipsed by the times, but nonetheless still alive in the memory of the nation."

The unitary executive theory
The original executive branch
The meaning of "executive" power
Law and the President

The ideas of executive and administrative power

Main arguments of Lessig & Sunstein

  • The framers narrowly conceived "executive power." They left "administrative power" up to congressional allocation. Hence L&S reject the originalist derivation of the unitary executive.
  • However, an interpretation of founding principles based on "text and context" justifies reserving some "unitary powers" to the president that the framers would not have recognized.

The concept of administrative functions

Political scientists around 1900 first distinguished "administrative" functions of government, versus other executive and versus legislative and judicial functions

  • controlling the government
  • carrying out statutory instructions, such as by regulating railroad rates or preventing the accumulation of monopoly power
  • case-by-case rules made by neutral experts
  • managing large public bureaucracy to perform complex tasks

Framers' understanding of executive and administrative functions

  • from Locke and Montesquieu: executive functions with respect to international law and monarch's traditional prerogative powers.
  • Although it was unnamed and somewhat vague, framers had an idea about the administrative function. Evidence:
    • political powers vs. ministerial duties in Marbury v. Madison (1803)
    • Kendall v. U.S. (1838) Postmaster General discretion is limited by statute
    • The Take Care Clause vs. the Necessary and Proper Clause
      • indications in the Convention's development of presidential powers that "executive" powers are a subset of those "not Legislative nor Judiciary in their nature" (from Madison's preliminary suggestions)
      • N&P Clause finally refers to "all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof"
    • making sense of the Opinions Clause
    • the Invalid Pensions Act of 1792: a "constitutional howler"?
    • making sense of the First Congress's design of Treasury Department and their variety of treatments of prosecution
    • making sense of Whig outrage over the Bank War
  • Conclusion: The framers understood what was later called the administrative functions of government to range far beyond the executive powers; and they assigned to Congress the power to allocate administrative powers that were not executive.

The modern mishmash

An increasingly regular habit of 20th century political discussion was to treat administrative functions as "executive" because they too happen in the executive branch.

  • result: the mistaken originalist argument version for "unitary executive" theory
  • misusing the Vesting Clause, the Take Care clause, the

Text and context

fidelity to founding principles by appreciating both the conditions in which the framers worked, and the current conditions to which their principles are to be applied


  • commerce clause jurisprudence
  • extension of 1st amendment “Congress shall make no law” formulation to the actions of courts and executive agencies
  • cruel and unusual punishment

Founding principles motivating the vesting of executive power:

  • coordination
  • accountability
  • efficiency in government
  • avoiding factionalism

With respect to the proper delineation of executive power, how has context changed?

  • far more extensive federal government
  • doing far more important things
  • experience of how such govt institutions actually function; e.g. relative effectiveness of expertise vs. politics in administration of policy
    • L&S talk about factionalism, politics; what they mean is particularism and special-interest accommodation. They look to the “national constituency” of the president to provide the best protection against the resulting inefficiencies.
  • (but an alternative possibility is that we’ve learned more clearly, and face more acutely, the dangers of overweening presidential power; the president's power should be more carefully constrained in the modern context)

“Current” issues

Where should Congress be permitted to limit presidential supervision and removal?

  • conflicts of interest, or conflict between political pressures and policy goals, are good reasons for presidential limitation: Fed, Independent Counsel.
    • Similarly for criminal prosecution more generally?
    • L&S don’t use the term legitimacy-preserving or -enhancing, but they could have
  • Adjudicative decisions in administration (e.g. ALJs)—likewise. Here L&S buy into Humphrey’s Executor
  • Setting of broad policy goals left open by statute to administrative decisionmaking: should be in the hands of the president. So with respect to the “quasi-legislative” functions of administrative rulemaking, L&S would require more presidential supervision, rejecting Humphrey’s Executor
  • Need for more definite statutory specification of (1) what constitutes “good cause” for limited presidential removal and (2) what broad policy goals are to be agency mandates protected from presidential opposition.
  • High-level officials dealing with the explicitly enumerated presidential powers—commander-in-chief, foreign affairs—must be removable at will by pres.
The unitary executive theory
The original executive branch
The meaning of "executive" power
Law and the President


Law and the President

Historical episodes from Pildes' article

  • Obama continued Libya intervention 2011 after 60-day War Powers Resolution deadline
  • Obama consideration of ignoring statutory debt ceiling (also platinum coin) 2011 & 2013
  • Obama failure to try Guantanamo suspects domestically (& close it) due to 2011 prohibition in FY11 Def. Authorization Act
  • DoJ rebellion against Bush admin warrantless surveillance
  • Bush admin enhanced interrogation, black sites
  • Cheney-Rumsfeld concern with laws purporting to restrict presidential action
  • "Wall" preventing intelligence agency cooperation on terrorist as of 2001
  • Iran-Contra affair
  • Nixon turning over Watergate tapes as ordered by court
  • Eisenhower declining to send troops to Suez without congressional authorization
  • FDR lend-lease to send warships to Britain
  • Lincoln suspension of habeas
  • Jackson and the Bank War

A thought experiment

The "plebiscitary" idea of the presidency

  • All actions legitimated by election
  • Constrained only by the need to maintain public support or "credibility"
  • Ultimately controlled by election (& party interests)
  • Advantageous self-constraint?

Theoretical mechanisms for complying with law

  • "Holmesian" -- instrumental, consequentialist, legal realism
    • Pildes characterizes the majoritarian thesis: "'politics,' not 'law,' determines how much discretion presidents actually have." (1405)
  • "Hartian" -- normative; that is, felt obligation to comply with social norms
  • Theoretical conundrum: how to account for compliance that is due to anticipated reaction to a violation of written law.
    • "'Political' reactions would be motivated directly by the position that the President was acting 'unlawfully'; judgments of legality and political resistance to the President are so intertwined here as to make it meaningless to purport to distinguish them." --Pildes (1401)
    • "legal compliance as a powerful signal...in maintaining a President’s critical credibility as a well-motivated user of discretionary power" (1407)
    • "Law is constitutive of the very processes of political struggle that Posner and Vermeule make central to their account." (1409)
    • "Law can serve as a crucial focal point for widely shared judgments about presidential credibility." (1411)

Law as a focal point

  • Law enforcement
    • When exactly is government to exercise coercion? Will individual officials comply?
    • Ultimately, provides the structures for recognizing and punishing corruption
    • Enable limited and approved use of coercive power
  • Rule of law – dependability of rights
    • Political
    • Civil
    • Property
  • Coordination of executive branch activities
    • Maintain agreement across agencies and departments
    • Coordinate activities of large number of officials
    • Over time—ability to maintain consistent policies, e.g. economic management
    • Role of the OLC
  • Public support and opposition
    • Rhetorical effectiveness of “illegality”
    • Credible promises of respecting the rights and interests of policy losers or political opponents
    • Support for democratic institutions